Sharrif Floyd's lawsuit against Dr. James Andrews won’t be an easy case to settle, riddled with challenges in proving $180 million in damages.
As first reported by The MMQB’s Albert Breer, former Minnesota Vikings defensive tackle Sharrif Floyd has filed a $180 million medical malpractice lawsuit against famed orthopedic surgeon Dr. James Andrews, the Andrews Institute for Orthopedic Surgery, Gulf Breeze Hospital and eight other defendants. The 27-year-old Floyd, who hasn’t played in an NFL game since 2016, charges that he suffered debilitating muscle and nerve damage in the aftermath of an unpermitted knee surgery at the Andrews Institute in Pensacola in September 2016. Floyd contends that the damage was caused by the negligent administration of a pain blocker. The blocker was used after the surgery itself became far more invasive and complex than Floyd had agreed to. The lawsuit also depicts Andrews as recklessly delegating decision-making authority concerning Floyd’s care to relatively inexperienced surgical fellows whom Andrews was entrusted with supervising and training.
Floyd filed his lawsuit in a circuit court in Orange County, Florida. He is represented by Miami-based attorney Brad Sohn. Sohn has represented other NFL players in personal injury lawsuits. One of those players is former Tampa Bay Buccaneers kicker Lawrence Tynes, who sued the Buccaneers in 2015 over the practice facility conditions in which Tynes suffered a career-ending MSRA infection. Sohn successfully negotiated a settlement on behalf of Tynes.
The rise and fall of Sharrif Floyd and his ill-fated surgery
It was only a handful of years ago when Floyd was a highly promising prospect who some football experts predicted would become a superstar. Courted by top programs from across the country, Floyd, a five-star recruit out of Philadelphia’s George Washington High School, enrolled at the University of Florida in 2010. He went on to become an All-American defensive tackle for the Gators. Despite his massive size—Floyd stands 6’3 and weighs 311 pounds—Floyd was regarded as unusually quick. Impressed by his potential, the Vikings drafted Floyd in the first round (23rd overall) in the 2013 NFL draft. Floyd quickly became a solid contributor in the Vikings defense. The Vikings elevated Floyd to the starting defensive tackle position in the 2014 season, during which he recorded 4.5 sacks.
While productive and gifted, Floyd battled knee and ankle injuries over his first few NFL seasons. Those injuries led to multiple knee procedures, including one in which cartilage was removed from his left knee. Dissatisfied with his health, Floyd consulted with Andrews in September 2016 in hopes that the famed physician could help him. Floyd contends that Andrews initially advised Floyd to avoid surgery altogether and instead adopt a “conservative management” approach. Such an approach would help get Floyd, who was on the fourth and final year of his rookie contract, to the end of the season. As Floyd depicts the narrative of events, Andrews encouraged him to “get the symptoms under control and play as tolerated [without] surgical intervention at this time in the hope of waiting until the end of the season.”
Floyd would play for the Vikings in their regular season opener against the Tennessee Titans on Sunday, Sept. 11, 2016. However, Floyd did not play in the following Sunday game (Sept. 18) between the Vikings and the Green Bay Packers.
Four days later, Floyd flew to Florida to see Andrews for what he thought would be a medical examination. Yet upon arriving, Floyd was stunned to learn from Andrews’s surgical fellows that Andrews had booked Floyd for surgery on his right knee. Floyd was assured the surgery was a mere minor knee-scope and that he’d be back to playing within three or four weeks. Floyd acknowledges that he consented to this minor procedure but emphasizes that he neither explicitly nor implicitly consented to any other procedure.
Instead of a knee-scope, Andrews and two surgical fellows performed a “cartilage-regrowth procedure” on Floyd that posed “far greater risks and far greater impact to Floyd’s ability to return to football.” As depicted by Floyd, the procedure entailed “violating the bone’s surface, using an arthroscopic burr to purposefully cause bleeding.” Even if the surgery had been successful, the surgery would have ended Floyd’s 2016 season—an outcome which Floyd would not have accepted given that he was in the fourth and final year of his rookie contract.
Not only was the surgery unsuccessful but Floyd experienced a post-operation treatment that he says was unnecessary and that caused him irreparable injury. One of Andrews’s colleagues, Dr. Gregory Hickman, performed a “post-operative adductor-canal nerve block” on Floyd—a decision that Floyd insists was done without his consent. This post-op procedure entailed the administration of substances to numb Floyd’s pain. However, Floyd notes that the “post-operative adductor-canal nerve block carried the risk of career-ending complications” and was unwarranted in the circumstances. As Floyd notes, not only did he not offer consent to the nerve block—to that point, as an NFL player, Floyd is accustomed to dealing with pain and would seem less likely than the typical person to okay a procedure to blunt pain—but even if Floyd had consented, it would not have been a legally-binding, informed consent since he was heavily medicated at that time. Floyd stresses he “would have preferred to remain in pain rather than undergo such a non-essential procedure that gambled his entire career.”
Worse yet for Floyd, the nerve block was (as Floyd claims) “negligently misplaced” by Hickman. The misplacement allegedly caused “permanent injury” to Floyd by “destroying portions of Floyd’s femoral/saphenous nerves and attendant musculature (e.g. the quadriceps and vastus medialis muscles.)”
The outcome of Floyd’s surgical experience was certainly unusual. Dr. David Chao, an orthopedic surgeon who served as San Diego Chargers team physician and who has performed thousands of knee scopes including on countless NFL players, tells The MMQB, “A knee scope should never lead to nerve or muscular damage.”
Floyd hasn’t played since his surgery with Andrews, and his lawsuit says his career is over. During his four NFL seasons, Floyd missed 20 out of a possible 64 regular season games, with 15 of those missed games occurring during the 2016 season.
Relationship to Floyd’s salary grievance
Separate from his lawsuit but related to the surgery, Floyd and the NFLPA are engaged in a labor grievance with the Vikings over the team’s decision in 2017 to classify Floyd’s knee injury as a non-football injury. In 2013, the Vikings signed Floyd to a four-year, $8 million rookie contract, of which $6.7 million was guaranteed. In May 2016, the Vikings exercised a fifth-year option for Andrews, a move that was scheduled to guarantee him $6.8 million during the 2017 season.
However, before Floyd’s 2017 salary became guaranteed on March 9, 2017, the Vikings concluded that Floyd’s inability to play reflected a non-football injury. The team reasoned that Floyd was sidelined by nerve damage that occurred during a medical procedure and not during a football game, practice or training session. This designation allowed the team to avoid placing Floyd on the injured reserved and also empowered the team to pay Floyd a lesser amount of its choosing. The team reportedly paid Floyd only his base salary of $2 million, meaning the Vikings effectively saved $4.8 million by designating Floyd’s injury as non-football related. Floyd contends the injury is football related since the surgery was necessitated by knee injuries that arose through him playing football. Breer reports that Floyd and the Vikings have made progress on a possible settlement to this grievance.
Floyd is taking on a legendary figure in sports medicine
The facts depicted above are, of course, from the perspective of Floyd and Sohn. When Andrews and his co-defendants answer Floyd’s complaint, they will probably offer a very different account of what took place. It will be up to the legal system to best determine what actually happened, before, during and after the surgery.
In the meantime, it’s worth noting that significance of the lawsuit in the field of sports medicine. Andrews, 76, is perhaps the most influential and sought-after surgeon in American sports. He and his group have treated thousands of athletes over the last four decades for ligament and joint issues. Those athletes include such major figures as Michael Jordan, Roger Clemens, Bo Jackson, Allen Iverson, Alexandra Stevenson, Jack Nicklaus, Donovan McNabb, Jeremy Roenick and Drew Breees, as well as numerous lesser-known athletes at the youth, collegiate, pro and amateur levels. Dozens of teams and organizations, such as the Washington Redskins, the LPGA and the University of Alabama, have retained Andrews. Andrews has been featured favorably in several Sports Illustrated stories, including Scott Tinley’s 2010 article “How Dr. James Andrews went from sports fan to the sports surgeon.”
An endorsement by Andrews is akin to a celebrity endorsement. He has a kind of brand value that is extremely unusual in medicine. It is not an overstatement to say that Floyd is taking on a titan in sports medicine.
Andrews’s fame in part reflects the satisfaction of at least some of his patients. A review by The MMQB of Andrews’ license to practice medicine in Florida revealed no disciplinary actions. Also, although the Andrews Institute has been a defendant in several lawsuits over the years, available court records do not indicate that Andrews himself has been a defendant. This does not mean that Andrews hasn’t been threatened with lawsuits by dissatisfied patients. Under Section 766.106 of the Florida Statutes, a patient who intends to sue a physician in Florida must first notify the physician of the intent to sue. This notification can lead to settlement discussions between the patient, the physician and the physician’s insurance company. Those discussions often lead to a settlement that preempts the filing of a lawsuit. Obviously, no such settlement between Floyd and Andrews occurred prior to Floyd filing his lawsuit.
Andrews has encountered legal issues that have raised questions about his judgment and management style. In 2007, Andrews agreed to pay the federal government $450,000 to resolve what the federal government depicted as a “kickback scheme.” Andrews, along with another physician and the HealthSouth company, was accused of partaking in a conspiracy to fraudulently bill Medicare and Medicaid.
The legal process and likely defenses
Like other physicians who are sued for malpractice, Andrews will argue that he and his colleagues adhered to the relevant standards in the medical profession while treating Floyd. He will also insist that Floyd’s nerve damage was not caused by either Andrews or any of his co-defendants.
While this may sound obvious, surgery inherently carries risk. Physicians do not, and cannot, guarantee successful outcomes. While patients tend to experience certain phenomena associated with surgeries and medicines, every patient is unique. Sometimes, for unforeseeable reasons, patients react poorly to certain treatments and medicines that other patients receive favorably.
Also, during a surgery, a surgeon might notice that the operated area has features that were not apparent in an x-ray, MRI, CT scan or Pet scan. The surgeon might then find it necessary to deviate from the expected plan. With these points in mind, a court reviewing Floyd’s malpractice claim will be guided not by whether the surgery was successful but by whether Andrews and his colleagues acted reasonably in light of industry norms and standards of care.
Should the lawsuit go to trial, expert witnesses—including physicians retained by each side to offer competing expert testimony—would play crucial roles in determining the merits and weaknesses of Floyd’s contentions. The role of experts is arguably heightened in a medical malpractice trial since jurors often lack base knowledge about medical procedures and are thus particularly malleable to the persuasion of courtroom testimony and advocacy.
Here, there are at least two sources of dispute. One is whether Floyd knowingly consented to the surgery performed on him. According to the lawsuit, through his surgical fellows Andrews, who has practiced medicine since 1973, assured Floyd that the surgery would be a minor arthroscopic procedure Floyd was told the knee scope would keep him out of action for about a month. Instead, a season-ending cartilage-regrowth procedure surgery was performed on Floyd. This procedure proved much more extensive and riskier. Floyd insists he never consented to the surgery performed on him and that he never have consented to a risky, season-ending procedure in the last year of his rookie contract.
A court will want to know whether Floyd was informed about the possibility of a more extensive surgery and, if so, whether he expressed consent. Andrews presumably will argue that Floyd had clearly been notified and assented to Andrews taking necessary steps to attempt to fix the damage. Whether Andrews was in the operating room when the procedure occurred and whether he delegated too much discretion to junior colleagues will be relevant. Andrews might also point out that it is not uncommon for a physician, while performing a surgery, to detect greater damage than anticipated and then attempt to remedy the damage at that time (rather than expect that the patient would want to schedule a second operation).
The other dispute is the administration of a nerve block that purportedly caused Floyd muscle and nerve damage. Whether the nerve block was applied correctly by Andrews’s colleague—Hickman—and whether it was reasonable for the defendants to administer this particular nerve at that particular time will be sources of debate. The defendants will likely argue that industry practices and their expertise in sports medicine led them to reasonably decide to use the block.
In addition, Andrews might dispute the alleged causation of Floyd’s ailments. Andrews might claim that it is likely that some other incident or condition caused Floyd to suffer nerve problems. To that point, Andrews could insist that even if he or his co-defendants committed a medical error, such error it is unconnected to Floyd’s injuries.
Along those lines, Andrews will stress that Floyd has gone under the knife multiple times. Perhaps it will prove difficult for Floyd to prove that Floyd’s problems are likely the fault of Andrews and his co-defendants when Floyd’s knee has been surgically treated before and after Andrews’s surgery. Like with other elements of the Floyd’s lawsuit, the quality and authoritativeness of each sides’ expert testimony could prove crucial.
Challenges in proving $180 million in damages
If Floyd is able to prove that Andrews and the other defendants were negligent, the question for the court would then turn to appropriate damages. Until last year, Florida law had capped non-economic damages (meaning pain and suffering, mental anguish and similar harms that are not economically-based) to $500,000 in most cases. That cap is no longer in play, as the Florida Supreme Court ruled it unconstitutional. Also serving as a favorable factor for Floyd, Florida law does not cap economic damages. Such damages would include the amount of money Floyd lost due to the alleged negligence. Still another favorable factor for Floyd: the lawsuit was filed in Orlando, which is about 450 miles from Pensacola. Had it been filed closer to Pensacola, some of the prospective jurors might have ties to persons employed by Andrews and the other defendants or feel favorably about those defendants.
Floyd’s lawsuit demands a staggering amount of money in damages: $180 million. This figure is based on seven categories of harm:
1. Permanent and severe bodily injury
2. Past and future medical expenses
3. Lost wages
4. Impaired future earning capacity
5. Permanent disability from professional sports
6. Pain, suffering; and emotional distress, shame, damage to good name
7. Impaired protection and society for Floyd’s two minor children
Much of the $180 million reflects what Floyd supposedly would have earned in NFL employment contracts after his current contract expired. It presumably also considers what he might have earned in endorsement money.
The $180 million figure has already faced skepticism on social media as optimistic and unlikely. Consider the earning trajectories of even the best NFL players. According to Cork Gaines’s Business Insider article that was published two days ago, only seven NFL players have earned $180 million or more in NFL contracts. All seven of them are quarterbacks, with Peyton Manning and brother Eli Manning, the two highest earners. The highest earning defensive tackle—the position played by Floyd—is Gerald McCoy of the Buccaneers. McCoy, a six-time Pro Bowler who is widely regarded as one of the best defensive tackles in the NFL, has earned $110 million.
While Floyd was promising, it’s speculative to conclude that he would have become one of the best players at his position. However, Floyd and Sohn would advance that theory if they retained expert witnesses who are knowledgeable about football and who jurors would find persuasive (for example, a former general manager to an NFL team who insists that Floyd was headed to stardom might be a very powerful witness for Floyd).
Even if jurors are convinced that Floyd was headed for Canton, Sohn would need to convince jurors that Floyd would have earned enormous salaries while an NFL star. Sohn will likely note that Los Angeles Rams defensive tackle Aaron Donald recently signed a six-year, $135 million deal. Sohn is also poised to stress that NFL salaries are likely to increase over the next five to eight years as NFL revenues increase.
Also, it’s worth reiterating that the $180 million figure not only reflects earnings associated with Floyd’s NFL career. The figure also reflects pain and suffering, which could be considerable, as well as other harms.
This will be a difficult case to settle
As with many forms of civil litigation, medical malpractice litigation typically ends with a settlement negotiated by attorneys and insurance companies.
This case is different in that is extremely unlikely that any insurance company would insure its physician clients for a potential payout of $180 million in a settlement. The alleged damages, in this case, are so high that if Floyd insists on a settlement amount anywhere near $180 million, Andrews and the other defendants would likely have to agree to pay sizable sums out-of-pocket. That dynamic could lead them to take a chance in a trial.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.